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2014 DIGILAW 1118 (PNJ)

Dalip Singh v. Financial Commissioner (Appeals)

2014-07-30

K.KANNAN

body2014
K. Kannan, J. I. The subject matter of lis 1. The writ petition is at the instance of some persons claiming to be tenants of the property which had been declared as surplus and allotted to eligible persons under the scheme pursuant to the declaration made under the Punjab Land Reforms Act, 1972. Admittedly, the holding of one Kashmir Singh was said to be in excess of the ceiling area and declared as such on 30.07.1976. The declaration specified 217 kanals of land as falling in surplus pool and the order of the Collector had not been challenged by the landowner himself. This declaration was admittedly after the landowner had also given his reservation in form-A. After allotment in favour of private respondents 5 to 7, mutation had been made in their names and the property had been delivered possession of. 2. The allotment and possession were sought to be impeached at the instance of the present petitioners who claimed that the property had been in their possession as tenants long before the date of the notification and, therefore, all the proceedings that had been taken without notice to them and without allowing for reservations to be made by them were incompetent. The key issue at the time when objection was taken was whether they were actually having any right in respect of the property and by the order of the Commissioner, the matter had been remitted to the Collector for giving opportunity to the persons claiming the rights of tenancy and pass appropriate orders. The Collector had purported to have caused a local inspection and he held that the petitioners were actually tenants in their possession before declaration and the entries which had been made in jamabandis for the relevant year of the year 1971-72 had been wrongly cast. He found that the jamabandi entries for the previous years from 1966 were in the name of the petitioners and others and it was only a stray entry in the year 1971-72 where the properties were shown as to be in personal cultivation of the big landowner-Kashmir Singh. This order of the Collector finding that the petitioners were tenants was appealed against by the allottees on a plea that the petitioners were close relatives of the landowner and they had deliberately set up tenancy to exclude lands from being treated as surplus. This order of the Collector finding that the petitioners were tenants was appealed against by the allottees on a plea that the petitioners were close relatives of the landowner and they had deliberately set up tenancy to exclude lands from being treated as surplus. The Commissioner found two important facts as relevant: one, the petitioners were the uncle of the landowner, being father's first wife's brother. If it was wrong entry at their instance, it was not merely a wrong entry at the instance of the revenue authorities, but it was a case where the landowner himself had given the properties as held under his personal cultivation in form-A. While the Commissioner allowed the appeal finding that the entry of the properties as khud kast was relevant, the Financial Commissioner reasoned that the landowner Kashmir Singh had himself signed the proforma filling up in column 6 of form-A that the property claimed by the petitioners was in his personal cultivation. The Financial Commissioner also noted from the file of the Collector Agrarian that he had recorded a statement of Kashmir Singh on 30.07.1976 that he opted to surrender the land as property held by him and he had not referred to the property as held by the petitioners as tenants. II. Grounds of challenge 3. The learned senior counsel for the petitioners assails the order passed by the Commissioner as affirmed by the Financial Commissioner on a plea that the actual holding of the property in the hands of the petitioners was noticed from the jamabandi entries of 1966 itself and admittedly, they were entries subsequent to the declaration as well. What was entered as in the hands of the landowner was but a stray entry which ought to be discarded. The counsel would also refer to the fact that the petitioners were not close relatives of the landowner as claimed and he would refer to the landowner's own statement that he was barely 6 years old at the time of partition when he came from the place now in Pakistan and he was being taken care by his uncle and the properties were being managed by the petitioners and they were attempting to take advantage of his relative young age and appropriate his lands. According to him, this statement of the landowner would itself show that the landowner had no close affection for his uncle and he was apprehending an attempt to usurp his land holding. Yet another circumstance, which according to the learned senior counsel that would weigh in his favour, is the fact that a civil suit was filed in the year 1977 against the landlord where the landlord admitted that the properties were held by the petitioners as tenants and the revenue authorities could not have ignored civil court decree. So long as the civil court decree stood, the authorities were bound to give effect to the same. The counsel would refer me to the decision of the Supreme Court in Daljit Kaur and another Versus Muktar Steels Pvt. Ltd. and another- 2014(1) Law Herald (SC) 668 as laying down a proposition that when a decree was passed without any dispute being raised, it could not be appealed against or assailed by any party. The same position was also sought to be reiterated through a decision of this court in Zehro Versus Balbir Singh- AIR 2011 (Punjab) 127that held that a consent decree is always as good as a decree obtained after contest and would bind all concerned unless the same was avoided in any of the permissible ways provided under Order 23 of CPC. III. The plea in defence of impugned orders 4. The contention of the petitioners is resisted by the subsequent allottees after the property was declared as surplus by pointing out to the fact that when the property was declared as surplus in the year 1976, the landowner himself had not challenged the same and the petitioners who were near relatives were later introduced as tenants only to get over the effect of declaration. About the consent decree, the counsel would refer to Section 7of the Land Reforms Act that made irrelevant any decree that was passed subsequent to the appointed date, namely, 24.01.1971. According to him, the decree was collusive and will not bind them. IV. Consideration: Jamabandi entry for 1971-72- Pointers to its correction 5. If it were merely a case of a stray entry that was the result of wrong assessment regarding actual possession by the revenue officials, it could be discarded and the entries before and after would obtain significance. According to him, the decree was collusive and will not bind them. IV. Consideration: Jamabandi entry for 1971-72- Pointers to its correction 5. If it were merely a case of a stray entry that was the result of wrong assessment regarding actual possession by the revenue officials, it could be discarded and the entries before and after would obtain significance. It is too much of a coincidence that the so-called stray entry that was alleged to be wrongly entered was also a matter of admission by the landowner that he held the said properties in his possession and gave a statement to that effect in his writing. Form-A declared what Kashmir Singh had given after making a reservation of his own lands that he wanted to hold and declared the property that he was surrendering. It could not be a matter of mere mistake and under normal circumstances, it was not possible for the landlord to expose his own relatives to any serious harm by declaring the property as surplus which he was willing to surrender. A tenant, who is a loggerheads with the landlord may come by a situation where the landlord could have attempted to deliberately created an adverse situation and exposed him to lose the property which he held as a tenant. A statement by him that he had been taking care of after partition of the country by the petitioners and the lands were being managed by his uncle would only be indicative of closeness of relationship of parties and the petitioners could never have done an act to imperil their holdings. 6. If there was also a statement that the petitioners were attempting to usurp his lands, it could just as well have been a later perception but there would be nothing to show that there was any form of tenancy under Kashmir Singh. The law protects only bona fide tenants. Even assuming that the petitioners were tenants in the year 1966, there is nothing unusual for a tenant who is a close relative to surrender back the property to the landlord. The learned senior counsel would argue that there was nothing to show that the property had been delivered back to the landowner and there was no document for the same. The learned senior counsel would argue that there was nothing to show that the property had been delivered back to the landowner and there was no document for the same. If there had been a registered lease or a lease created through an instrument, the law would compel even the surrender to be through a registered instrument only. If the original lease was oral, there is nothing in law that prohibits an oral surrender. The fact of an entry during the relevant time when the Act was notified to have come into effect, namely, on 24.01.1971 that the property had been put under personal cultivation of the landowner is vital and it synchronizes with the landowner's own assertion through statement in the proforma that he was holding the same. It ought to be an expression of what was true and the contention now urged is an attempt to introduce untruth and defy entries which were proper. I would, therefore, hold that the so-called lease in favour of the petitioners at the time when the Act came into force was not genuine. The learned senior counsel for the petitioner would rely on the decision in Tansukh and others Versus Financial Commissioner and Principal Secretary, Revenue Department, Government of Haryana and others- 2013(4) RCR (Civil) 942 that a prescription of proof attached to the entry in jamabandi and where entry appeared without reason or contradicted as earlier and subsequent entry, the court could ignore such an entry must be seen as stating a position of law in a given set of the circumstances where the State made wrong entry and the person who was the owner was willing to contest it. We have already observed that State entry was not stray. On the other hand, it was also in conformity with the landowner's own affirmation that the property was held in his personal cultivation. The decision in Tansukh (supra) cannot, therefore, apply. V. Collusive decree could be a matter of inference; Plea in defence always permissible, that requires no positive action to set aside decree 7. The issue would therefore be to consider the effect of a decree that has been obtained on consent. Both the decisions relied on by the learned senior counsel refer to situations of when a consent decree could be binding between parties. The issue would therefore be to consider the effect of a decree that has been obtained on consent. Both the decisions relied on by the learned senior counsel refer to situations of when a consent decree could be binding between parties. A consent decree against the landowner Kashmir Singh if it were to be final, it would bind only Kashmir Singh and that too from the time when such consent was made in the year 1977. The property had been taken over by the government and delivered even on 24.12.1976. The private respondents 5 to 7 are not persons who claimed under judgment debtor-Kashmir Singh, but they claimed under the government. The government's own right to the property by way of vesting after declaration operated anterior to the date when the decree was passed. The consent decree cannot therefore be binding either on the government or the allottees. It must also be noticed that if the petitioners were attempting to fend off a claim by the private respondents 5 to 7 who claimed under the State, the petitioners could have had a valid right against respondents 5 to 7 only if the State has been made as a party and respondents 5 to 7 had also been impleaded in the suit. It is also a moot point that where such a suit would be permissible for what is provided through express provision under the Punjab Land Reforms Act. As regards the determination of permissible area of a tenant, it cannot be a matter for an adjudication or be concluded through a declaratory decree that the petitioners were tenants under Kashmir Singh. Even without reference to any of the propositions made, the Evidence Act itself provides for certain situations when decrees cannot be binding. The previous judgment which would be relevant are considered in Sections 40 to 43 of the Indian Evidence Act. In any proceedings where a previous judgment is relevant such as in this case whether a decree granting the petitioners' right as tenants was relevant, Section 44 allows any party to suit or other proceedings to show that such judgment or order which is relevant had been delivered by a court not competent to allow it or was obtained by fraud or collusion. A suit to declare a particular decree as collusive or being affected by fraud could be one method of defeating the rights claimed under a decree. A statement in defence that a decree is fraudulent or collusive is also another method of thwarting an effective implementation of the so-called decree. While the former suit to set aside could be subject to law of limitation, the law relaxes the rigour of limitation for defence, for, in a defensive action that a decree is invalid or ineffective, there is not a fetter of limitation at all. The entire law has been set out in Tagore Law Lectures, U.N. Mitra's Law of Limitation and Prescription Volume 2, LexisNexis, 2013 Edition, it has been specifically laid down while paraphrasing judgments of Calcutta, Bombay and Patna that right given by Section 44of the Evidence Act, has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree set aside by bringing a regular suit for the purpose. A decree or order can be challenged on the ground of fraud in a collateral proceeding without any suit for setting aside the decree, irrespective of the time when the judgment was delivered or order or decree was passed. (See: Tribeni Mishra Versus Rampujan Mishra- AIR 1970 Pat 13 ) 8. The collusive act is invariably a covert act. It has to be understood as such only from circumstances. The time when a decree is obtained, the manner of such decree, the actions which are sought to be quelled and the parties against whom such a decree is obtained are all relevant. Each one of the circumstances in this case would point out to the effect that the petitioners were truly interested in taking the properties out of the net of surplus pool. An argument that the petitioners are still in possession is neither here nor there. The crucial position is only the possession of the year 1971 at the time of the notified date. In a desperate situation where the landowner has already lost the property as falling within surplus declared to be so and surrendered by him, the assertion made later to allow for the properties to be enjoyed by his uncle is an obvious act of collusion to aid the person claiming under the tenancy. In a desperate situation where the landowner has already lost the property as falling within surplus declared to be so and surrendered by him, the assertion made later to allow for the properties to be enjoyed by his uncle is an obvious act of collusion to aid the person claiming under the tenancy. In this situation the petitioners have been benefited by the willing landowner who had nothing to lose further. After surrendering the property to the State if his close relatives were able to hang on by some machinations, it could only be taken as an owner supporting his relatives for their benefit which does not hurt him in any way. Both as regards the nature of entries and the admission of the landowner regarding the property as being held in his personal cultivation at the time when the Act came into force as well as the effect of a decree that had been obtained subsequently would only show that the landowner was engaging himself in an act to secure to himself or his near relatives the benefit of retention of the land and to keep at bay the State and the beneficiaries of the State, namely, the allottees. 9. The impugned orders of the Commissioner and the Financial Commissioner are well reasoned and the challenge to the same through the writ petition cannot stand judicial scrutiny. The writ petition is dismissed with costs assessed in 2 sets at ` 10,000/- as payable to the contesting private respondents and the State.